Research On The Nature Of The Act Of Transferring Funds By Misusing Other's Alipay Account

In the 21 st century,with the rapid advancement and broad generalization of technology and science such as computer,Internet and artificial intelligence,newly introduced methods of payment including e-payment and network mobile payment are increasingly showing their vitality around the world.Newly introduced methods of payment,which have the feature of digitalization,have the advantages of convenience,efficiency and maneuverability which traditional methods of payment do not have.However,since methods of payment have been transferred from offline to online,the requirement of safeguard of the safety of transaction is higher.The appearance of the third-party payment platform,which is represented by Alipay,has resolved the integrity and safety issues raised in the process of transaction,which has perplexed the parties of transaction for a long period of time.After more than ten years' development,the third-party payment platform has become an essential tool of payment in people's daily life,which has basically changed people's life as well.At the same time,property crimes which aim at the funds in other's Alipay account could be frequently found,which should bring more attentions of both judicial officers and scholars.For this purpose,based on the summary of the property crimes which aim at the funds in other's Alipay account and combined with relevant criminal law theories,this article systematically researches on the property crimes inthe context of newly introduced methods of payment,which aims at establishing theoretical foundation for the combat with this kind of crimes.This article includes four chapters:Chapter one focuses on the types and judicial determination of the act of transferring funds by misusing other's Alipay account.At first,this chapter analyzes the types of act which aim at the funds in other's Alipay account,which includes the misuse of the balance of other's Alipay account,the misuse of the funds in other's bank cards which are bound with other's Alipay account and the misuse of the service of so-called Ant check later in other's Alipay account.After summarizing true cases,this part comes to the conclusion that there is a chaos when deciding the nature of the act of transferring funds by misusing other's Alipay account: for the act of misusing the balance of other's Alipay account,some courts regard it as the crime of theft,while some other courts regard it as the crime of fraud;for the act of misusing the funds in other's bank cards which are bound with other's Alipay account,some courts regard it as the crime of theft,while some other courts regard it as credit card fraud;for the act of misusing the service of Ant check later in other's Alipay account,some courts regard it as the crime of theft,while some other courts regard it as contract fraud.Chapter two focuses on the relationship between Alipay account and credit card payment.This part aims at demonstrating that,the source of funds will not have any influence on the nature of the act of transferring funds by misusing other's Alipay account.From the perspective of the background of the third-party payment platform such as Alipay,its introduction aims at sharing risks in e-commercial and broadening the credit card business of commercial banks,therefore,substantially speaking,the third-party payment platform is the extension of the credit card.From the perspective of the current status of the business,Alipay's businesses have already significantly influenced the businesses of commercial banks.At the same time,the purposes of different department of law are different,therefore the meaning of financial institution in financial regulation and criminal code,Alipay could be regarded as the“other financial institution” in the Interpretation of the Standing Committee of theNational People's Congress about the Provisions Regarding the Credit Card in the Criminal Law of the People's Republic of China.Based on that,this part comes to the conclusion that there is a close relationship between the funds in Alipay account and the credit card payment,therefore,it does not matter where does the funds come from,it also does not matter whether the Alipay account is bound with bank cards or not,the act of transferring funds by misusing other's Alipay account infringes the property rights of the Alipay user as well as the management order of credit cards.Chapter three focuses on the nature of the funds in Alipay account from the perspective of criminal law.This part firstly distinguishes different types of funds,which includes funds of balance and funds of overdraw.For the reason that the scope of the so-called interest of property is not clear,interest of property is substantially different from property and regarding the interest of property as property itself has the doubt of violating the doctrine of nulla poena sine lege,regarding the funds in Alipay account as the interest of property is not a proper way of interpretation.We should accept a developing perspective when it comes to the concept of property in criminal code,the digitalization and informatization of the currency is a good example.Since the funds in Alipay account is the digitalization of the currency,it can be regarded as property in criminal code with no doubt.Chapter four focuses on the nature of the act of transferring funds by misusing other's Alipay account.It is a very controversial issue among both theorists and practice field.Two main theories have been raised,one of which is “the theory of the crime of theft”,and the other is “the theory of crime of fraud”.This part argues that,the act of transferring funds by misusing other's Alipay account satisfies the constitutive elements of the crime of fraud.The aim of Alipay company to require the user to enter correct user name and password by the means of procedure setting is to identify the identity of the user.Therefore,even if the user name and password which the perpetrator enters is correct,the misuse of other's Alipay account by the means of using other's identity still fabricates the fact that the perpetratoris the user himself or has been authorized by the user,which can be regarded as the act of fraud in the crime of fraud.Those views which deny that the perpetrator is the crime offraud by the reason that “a machine cannot be deceived” overstates the independent status of the machine and ignores the fact that human beings are the parties during the process of transaction,therefore,it is the Alipay company not the Alipay procedure who has formed a misunderstanding.At the same time,with the development of science and technology,it is possible that “strong artificial intelligence”,which has the ability of identifying,controlling and making self-decision.Therefore,legally admit that the machine is the extension of human wills and can be “deceived” has a positive influence on the legal practice.The Alipay company has the duty to offer service after the user entering the user name and password correctly does not mean that it does not dispose the property of the user voluntarily,and the Alipay company has the authority to dispose the property of the user.Therefore,the act of transferring funds by misusing other's Alipay account is a typical situation of dreieckbetrug.In addition,the act of transferring funds by misusing other's Alipay account cannot be regarded as the crime of theft both objectively and subjectively.